Amicus Curiae Brief — BCI Coca-Cola Bottling Co. v. EEOC, 127 S. Ct. 852 (2007) (No. 06-341)

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No. 06-341

IN THE

Supreme Court of the Anited States

BCI Coca-COLA BOTTLING COMPANY OF LOS ANGELES

Petitioner,

Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF AS AMICUS CURIAE OF THE

SOCIETY FOR HUMAN RESOURCE MANAGEMENT

IN SUPPORT OF PETITIONER

MICHAEL P. AITKEN MANESH K. RATH

KENYA N. WILEY Counsel of Record

SocieETY FOR HUMAN ROBERT A. SHEFFIELD

RESOURCE MANAGEMENT PETER L. DELA CRUZ

1800 DUKE STREET MELISSA A. D°’AMBROSE

ALEXANDRIA, VIRGINIA KELLER AND HECKMAN LLP

22314 1001 G Str... NW. Ste. 500 W

(703) 535-5026 WASHINGTON, D.C. 20001

(202) 434-4182

WiLSON-EPES PRINTING CO.. INC. — (202) 789-0096 -— WASHINGTON, D.C. 20002

i

QUESTION PRESENTED

Under what circumstances is an employer liable under

federal anti-discrimination laws based on a subordinate’s dis-

criminatory animus, where the person(s) who actually made

the adverse employment decision admittedly harbored no

discriminatory motive toward the impacted employee?

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TABLE OF CONTENTS

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INTEREST OF THE AMICUS CURIAE .........cccccccsseseeeeesenes |

SPIO GI OS PUNT ascccccnccsnnsccectansenesisoceeniemssiensen 2

UTES AR GP AIRTIUIIIIIIN F vcccecccesevesscssccseconsoczcssvsosesesesens 4

ED ieiiatiaiciadaiadaintiaintecsinteiinianicibuniipeiaiiiapaitndaciicpiieusiiituniciitnten 7

I. DISPARATE TREATMENT CASES

REQUIRE A SHOWING THAT AN

EMPLOYER INTENDED TO |

TIE: x: cuconerinncnsnsinsdicitiansssniiviiadegvinnticnansapsiie 7

A. Title VII Disparate Treatment Claims

Require Intent Whereas A Plaintiff

May Disregard Intent in Disparate

I I ciitacaetadisslecnsaticielindianiiniininninn 10

B. Title VII Defines An Employer To

Include An Agent Of The Employer.

The Agent In Subordinate Supervisor

Cases Is The Formal Decisionmaker,

Not The Subordinate Supervisor. ................ 11

ua Plaintiffs Must Show Discriminatory

Motive By The Person Committing

The Adverse Action. A Plaintiff May

Not Make A Disparate Treatment

Case By Grafting One Person's

Discriminatory Motive lo Another

Person’s Adverse Action.........................

1?

Il.

IV

Because A Plaintiff Must Show That

A Person Or Persons Took an Adverse

Action With Discriminatory Motive,

The Court’s Inquiry Should Center

Upon The Independence Of The

Formal Decisionmaker, Not Upon

Whether An Allegedly Biased Person

Caused Another To Take An Adverse

ESF RSE eA: One Fe ee IE ae Dire rar TP

If We Look to Whether The Formal

Decisionmaker Took Adverse Action

Independently Of The Person Who

Harbored Discriminatory Motive, The

Various Circuits’ Results Would

Appear Logical And Consistent ...............

DIFFERENT FACTUAL SITUATIONS

REQUIRE A MORE FLEXIBLE

APPROACH TO DETERMINING THE

INDEPENDENCE OF THE FORMAL

EEL occcnnsccccssinsdessnnannnndimmmnosecnineiensta 17

A.

The Formal Decisionmaker May

Demonstrate Its Independence By

Conducting An [nquiry..............ccccceeeeee

The Tenth Circuit Overlooks

Numerous Other Ways In Which

Independence May Be Demonstrated.......

l. Termination By The Formal

Decisionmaker Pursuant to a

Policy of Automatic

Termination (e.g.. a Zero-

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24

CONCLUSION

Vv

The Supervisor Does Not

Advocate For a Particular

Decision But Merely Reports

Facts To or Seeks Advice From

the Formal Decisionmaker

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TABLE OF AUTHORITIES

Cases

Bender v. Hecht’s Dep't Stores,

CR EI 21

Branson v. Price River Coal Co.,

BS © Ae FO CIGED COP, BGG) qn. ccncccccccccscccecessncocecessees 20

Burks v. Lasker, 441 U.S. 471 (1979) o..cccccccccccsecceeeseeneees 21

Burlington N. & Santa Fe Ry. Co. v. White,

126 S. Ct. 2405 (2006) ......... seitaceateaeleteiaisiiaiiolaitiinitin 8, 10

EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles,

450 F.3d 476 (10th Cir. 2004) oo. cceeeeeee passim

Griggs v. Duke Power Co., 401 U.S. 424 (1971).........0.002. 10

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993) ........0000+ 8

Hill v. Lockheed Martin Logistics Mgmt., Inc.,

354 F.3d 277 (4th Cir. 2004)...........c...cccccesseseeeees passim

Kamen v. Kemper Fin. Servs., Inc.,

TUITE ovinsietciidasiibitecindnneiaiinintinntinnphiatinepscnessnie 21

McDonnell Douglas Corp. v. Green,

| cen eee 8, 15.17

Millbrook v. IBP, Inc., 280 F.3d 1169 (7th Cir, 2002).......21

NLRB y. Bildisco and Bildisco, 465 U.S. 513 (1984) ........ 21

Olmstead v. L.C. ex rel. Zimring. 527 U.S. 581 (1999) .......7

Pers. Adm'r of Massachusetts v. Feeney,

EEE ae 8.9

Pippin v. Burlington Res. Oil and Gas Co.,

ee ee ...20

Price Waterhouse v. Hopkins,

EE ae ee 8, 14.18

Vili

Reeves v. Sanderson Plumbing Prods., Inc.,

Se. CIEE ciiertrnemnssnesctrconnensennnscnenevitinnnsnonin passim

Russell v. McKinney Hosp. Venture,

Bae ee EN oe Bee ec tccscscsissinctenantentennninen passim

Shager v. Upjohn Co.,

913 F.2d 398 (7th Cir. 1990) 0. abide passim

Smith v. City of Jackson, Mississippi,

TE 7

Stallings v. Hussman Corp.,

SOT F368 BOGE CB Cit. BG) .nxceevcncescesesscssescccescessescees 21

Texas Dept. of Cmty. Affairs v. Burdine,

Se E, GPT ‘sescchiniesiictitnsicteviinisttvecieniisinensinindasaniiensseidnniel 8

Statutes

Title VII of the Civil Rights Act of 1964,

ee cs Ce OE GUND cscinciscsincemmnsitiionenenenenivnnn passim

eas a SE aiscestrciniiciiinnisinnsnciisthnenainaiinenuitiniicnniuiiie 11

es ee Ee cecciaiinisenictiisiencninnianiinaneinntininniineianninteciiaia 14

Other Authorities

Restatement (Third) of Agency § 1.01 20.0... eee 11

Restatement (Third) of Agency § 2.01 ......ceeeeeeeeeeee 11

Restatement (Third) of Agency § 3.05.00... cece 11

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INTEREST OF THE AMICUS CURIAE

The Society for Human Resource Management (SHRM)

is the world's largest association devoted to human resource

management.’ Representing more than 210,000 individual

members, SHRM's mission is to serve the needs of human

resource professionals by providing the most essential and

comprehensive resources available. As an influential voice,

the Society's mission is also to advance the human resource

profession to ensure that human resources is recognized as an

essential partner in developing and executing organizational

strategy. Founded in 1948, SHRM currently has more than

550 affiliated chapters within the United States and members

in more than 100 countries.

If the decision below, as well decisions in other circuits

on the same issue, were left undisturbed, SHRM’s members

in the human resource profession would face a two-fold di-

lemma. First, the lower court’s opinion would require an in-

dependent investigation when none may be needed. Second,

the Tenth Circuit’s requirement that an investigation be

“adequate” does not furnish human resource professionals

with a clear statement of their minimum legal requirement.

SHRM’s members seek a principled standard that is

rooted in Title VII's statutory prohibition against an em-

ployer taking an adverse action against an employee with

discriminatory intent. SHRM/’s members have an interest in

a standard that preserves the human resource professional’s

ability to determine whether and what kind of investigation is

necessary. Finally, SHRM’s members have an interest in a

' Pursuant to Rule 37.6. amicus states that this brief was authored in

whole by counsel for the Society For Human Resource Management.

This brief was not authored in any part by counsel for a party to this mat-

ter. No person or entity, other than the amicus curiae, its members, and

its counsel, made a monetary contribution to its preparation and submis-

sion. The written consents of the parties to the filing of this brief have

been filed with the Clerk.

judicial standard that provides clear guidance to the human

resource manager when conducting an investigation that does

not leave open the possibility that a court will second guess

the adequacy of the investigation.

There are three elements of the Tenth Circuit's opinion

that are pertinent to SHRM and its members. First, the Tenth

Circuit held that “a plaintiff must demonstrate that the ac-

tions of the biased subordinate caused the employment ac-

tion.” EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles,

450 F.3d 476, 488 (10th Cir. 2004). Second, the Tenth Cir-

cuit held that that “an employer can avoid liability by con-

ducting an independent investigation of the allegations

against an employee.” /d. at 488. Third, the Tenth Circuit

rejected BCI’s investigation as “inadequate, as a matter of

law” for breaking the causal link between Mr. Grado’s al-

leged bias and Mr. Peters’ termination. /d at 492. The

Tenth Circuit held that BCI Coca-Cola’s investigation was

inadequate because Ms. Edgar never sought any other ver-

sion of events. /d. at 493. The Tenth Circuit reasoned that

“asking an employee for his version of events may defeat the

inference that an employment decision was racially discrimi-

natory.” /d. at 488.

STATEMENT OF THE CASE

The United States Equal Employment Opportunity

Commission (EEOC) filed a claim on behalf of Stephen Pe-

ters, an employee at the BCI Coca-Cola Bottling Company of

Los Angeles. Mr. Peters was the most senior merchandiser at

BCI Coca-Cola’s Albuquerque, New Mexico, facility, and he

enjoyed the best shifts, which included Saturdays and Sun-

days off. /d. at 478.

On Friday, September 28, Mr. Peters’ supervisor, Cesar

Grado, instructed Mr. Peters to report to work on Sunday,

September 30. 2001. /d. at 479. Mr. Peters refused. /d. Be-

cause the human resource professional for the Albuquerque

facility, Sherry Pederson, was not at work that day. Mr.

Grado sought advice from Pat Edgar, the human resource

professional in BCI] Coca-Cola’s Phoenix, Arizona, facility.

Id. Upon Ms. Edgar’s instruction, Mr. Grado informed Mr.

Peters that he needed to work on Sunday and that his refusal

would be insubordination that “could lead to termination.”

Id. Mr. Peters “started yelling,” and his final response to Mr.

Grado was, “{[D]o what [you] got to do and I'll do what | got

to do.” /d. (alteration in original).

Mr. Grado again contacted Ms. Edgar and informed her

that he had asked Mr. Peters to describe his weekend plans,

and that Mr. Peters had refused, saying they were “none of

{Mr. Grado’s] business.” /d at 480. Mr. Grado also re-

counted Mr. Peters’ final remarks (“Do what you got to do”),

which Ms. Edgar determined to be insubordination. /d. Ms.

Edgar. however, did not make the decision to terminate Mr.

Peters at that time. /d.

Mr. Peters did not report to work on Sunday. Instead, he

went to a walk-in urgent care clinic on Saturday evening with

complaints of a headache, sinus pain, and a cough. /d. “A

doctor diagnosed him with a sinus infection, gave him a pre-

scription, and directed him not to return to work until Mon-

day, October 1.” /d.

On Monday morning, October 1. Ms. Edgar held tele-

phone conferences with Ms. Pederson and Mr. Grado to dis-

cuss Mr. Peters’ conduct the previous Friday. /d During

those conferences, Mr. Grado informed Ms. Edgar that Mr.

Peters did not appear for work on Sunday. Additionally, Ms.

Pederson reviewed Mr. Peters’ personnel file and found a

Disciplinary Status Notice for an event in 1999 that resulted

in Mr. Peters receiving a two day suspension and “final

warning” for insubordination. /d (The facts of the 1999 in-

cident were strikingly similar to the instant case. /d. In the

1999 event. Mr. Peters was asked on a Friday to work on his

weekend day off, and his response was a “rude and unprofes-

sional” refusal. /d. at 480.)

By the end of Monday, October 1, Ms. Edgar made her

final decision to terminate Mr. Peters for insubordination. /d

It is undisputed that Ms. Edgar did not know Mr. Peters’

race, and no party suggests that either Ms. Edgar or Ms. Pe-

derson harbored racial animus against Mr. Peters. /d. at 481.

On October 11, Mr. Peters filed an EEOC complaint of

race discrimination, and on December 30, 2002. the EEOC

filed suit on his behalf in the United States District Court for

the District of New Mexico. /d. at 482. The EEOC based its

case on the theory that Mr. Grado harbored discriminatory

animus towards African Americans and that his animus

should be imputed to BCI Coca-Cola because Mr. Grado had

“substantial involvement” in Mr. Peters’ firing. /d. at 482.

The district court granted BCI Coca-Cola’s motion for sum-

mary judgment on the ground that Mr. Grado’s involvement

in Mr. Peters’ firing was too remote to permit any bias he

may have held to be imputed to BCI Coca-Cola. /d. at 483.

The EEOC appealed to the Tenth Circuit, which reversed

the district court’s judgment. The Tenth Circuit held that the

employer should be liable if the biased subordinate supervi-

sor caused the employer to terminate an employee. /d. at

488. Implicitly. the Tenth Circuit also held that the employer

may break that causal connection by conducting an “adequate

investigation.” which must at least contain an interview of

the employee to elicit his side of the story. /d at 491-92.

There is also language in the Tenth Circuit’s opinion that

suggests an “adequate investigation” must also contain a

thorough review of the employee’s personnel file. /d at 492.

SUMMARY OF ARGUMENT

Under Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000¢ ef. seg.. the disparate treatment standard

prohibits adverse action with the intent or motive to dis-

criminate. The words “intent” and “motive” are used inter-

changeably in Title VII jurisprudence. In creating a disparate

treatment claim, Congress’ did not enact a statute of strict

liability and did not prohibit or seek to penalize conduct void

ot discriminatory intent. However, under the Tenth Circuit's

holding in this case (as well as holdings from the Seventh

Circuit and other Circuit Courts of Appeal) makes an em-

plover liable for the concededly unknown biased motive of a

subordinate. In so holding, the Tenth Circuit improperly re-

lieves the plaintiff of his burden of showing that a decision-

maker took an adverse employment action with the statuto-

rily required discriminatory motive.

SIIRM recognizes the value of a taking a considered ap-

proach to termination. SHRM agrees with the Tenth Circuit

that there are instances in which asking an employee his side

of a story would illuminate a human resource professional’s

decisionmaking. However, SHRM does not agree with the

fenth Circuit that an employer could be liable under Title

\ || based upon the actions of a human resource professional

simply because a subordinate supervisor harbored a discrimi-

natory motive unknown to the human resource professional.

ihis would deprive an employer of well-established defenses

such as the presence of a legitimate nondiscriminatory reason

for an adverse action, a business necessity, or the uniform

application of a neutral policy.

[here is an abundance of authority that limits disparate

treatment liability under Title VII to an adverse action born

ot discriminatory motive. Thus, whether a supervisor

“caused” the employer to terminate an employee is irrelevant

to a disparate treatment case under Tithe VII. Further, a cau-

sation analysis sweeps too broadly because, arguably. most

or al! adverse actions can trace their causal roots, directly or

indirectly. to a supervisor's initiative.

In disparate treatment cases. SHIRM proposes that a more

precise inquiry focuses upon the decisionmaker’s motives

and upon whether the decisionmaker acted independently of

a biased subordinate.

6

SHRM understands the subtlety and complexity of as-

sessing liability in instances when a supervisor is involved in

an adverse action. The test adopted should focus upon

whether the neutral human resource manager’s decision was

independent of the supervisor's biased report.

As a converse of the proposition that the formal deci-

sionmaker was independent of the supervisor, the judicial

inquiry should ask whether the supervisor’s report and the

strength of hts advocacy for termination rose to such a level

that the human resource manager acted interdependently with

the supervisor such that they collectively performed the deci-

sionmaking function. SHRM asserts this was the case in

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133

(2000), discussed below.

In the instant case, the Tenth Circuit requires an “ade-

quate investigation” to break a causal connection between the

supervisor and decisionmaker. While an investigation is cer-

tainly one way to demonstrate that the human resource pro-

fessional’s decision was independent of the supervisor's bias,

the Tenth Circuit extends this proposition too far for two rea-

sons.

First. Tithe VII cases have consistently held that a court

will not second guess the adequacy of an employer's con-

duct, because courts have consistently refused to serve as an

employer's “super-personnel” department. Hence, the Tenth

Circuit erred in concluding that, although Ms. Edgar con-

ducted an investigation, it was inadequate as a matter of law.

Second. a human resource professional does not have to

conduct an investigation in all circumstances to establish that

she acted independently of a supervisor. For example, an

investigation Is not necessary when an employee's termina-

ble offense is open, apparent, and obvious. Similarly, no in-

vestigation is needed when a company has an automatic ter-

mination policy, such as a zero-tolerance policy for guns or

drugs. a three-strikes policy. or a uniformly applied no-fault

absence policy. In the instant case, Mr. Peters’ 1999 “final

warning” constituted the basis for automatic termination un-

der the employer's uniform policies.

Similarly, when a human resource manager monitored

and counseled a situation as it unfolded, no further investiga-

tion may have been needed at the situation’s critical moment.

This was the circumstance the instant case.

In addition, SHRM notes that the Tenth Circuit’s decision

does not reflect the realities of workplaces, particularly those

of larger employers. A trend amongst many employers is to

decentralize the human resource functions in a variety of

ways. At other workplaces, human resource departments are

opting to train responsible senior staff in traditional human

resource functions, such as performance appraisals and inves-

tigations. The Tenth Circuit decision fails to provide em-

ployers with the flexibility structure a corporate architecture

that serves an employer’s unique challenges.

ARGUMENT

I. DISPARATE TREATMENT CASES REQUIRE A

SHOWING THAT AN EMPLOYER INTENDED

TO DISCRIMINATE.

Under Title VII, an employee may bring either a claim of

disparate impact or of disparate treatment against an em-

ployer. E.g., Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581.

617 n.2 (1999) (Thomas, J., dissenting) (“This Court has rec-

ognized that two forms of discrimination are prohibited under

Title VII: disparate treatment and disparate impact.”). See

also Smith v. City of Jackson, Mississippi, 544 U.S. 228

(2005) (Where plaintiff brought both a disparate treatment

claim and a disparate impact claim). The instant case in-

volves a claim of disparate treatment, as do all of the cases in

the federal circuit courts that involve the issue of subordinate

supervisory bias.

For a plaintiff to survive summary judgment in a dispa-

rate treatment claim, he must show that the decisionmaker,

not just any employee, took adverse action with discrimina-

tory intent. F.g., Reeves, 530 U.S. at 143; Texas Dept. of

Cmty. Affairs vy. Burdine, 450 U.S. 248, 253 (1981). In

Reeves, this Court held that the ultimate question is whether

the employer intentionally discriminated. 530 U.S. at 146.

In Reeves, the first step in this Court’s analysis was to deter-

mine the motives of the various formal decisionmakers. This

Court noted that there were no allegations that two of the

formal decisionmakers in Reeves were motivated by age.

530 U.S. at 140. Thus this Court’s focus was upon the mo-

tives of the formal decisionmaker and upon who should be

deemed an actual decisionmaker, and not upon the motives of

just any employee.

The element of motive or intent is integral to a disparate

treatment claim under Title VII. See Burlington N. & Santa

Fe Ry. Co. v. White, 126 S. Ct. 2405, 2408 (2006) (“Con-

gress amended Title VII in 1991 to permit victims of inten-

tional discrimination to recover compensatory . . . and puni-

tive damages”); Reeves, 530 U.S. at 143; Burdine, 450 U.S.

at 256; Pers. Adm'r of Massachusetts v. Feeney, 442 U.S.

256, 278-79 (1979); Price Waterhouse v. Hopkins. 490 U.S.

228, 241 (1989). In Reeves, this Court held that “liability

depends on whether the protected trait . . . actually motivated

the employer's decision.”"~ 530 U.S. at 141 (quoting Hazen

Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).

In McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), this Court held that the plaintiff could show that

McDonnell’s proffered reason for refusal to rehire was

merely pretext by showing that McDonnell Douglas exhib-

ited racial discrimination during Mr. Green's previous em-

ployment, or by showing that McDonnell Douglas rehired

whites with a similar criminal background. Mr. Green was

arrested and convicted for illegally blocking traffic at the en-

trance of McDonnell Douglas’ worksite. He then applied for

reemployment. Thus, the burden remains with the plaintiff to

show that the person taking an adverse action took a pro-

tected status into consideration. See Reeves, 530 U.S. at 143

(holding that “[t]he ultimate burden of persuading the trier of

fact that the defendant intentionally discriminated against the

plaintiff remains at all times with the plaintiff.”) (alteration in

original) (internal quotations omitted).

This Court has held that to show intentional discrimina-

tion, a plaintiff must show that the “decisionmaker . . . se-

lected or reaffirmed a particular course of action at least in

part ‘because of, not merely ‘in spite of,” the protected

characteristic. Keeney, 442 U.S. at 279 (1979). In Feeney, in

evaluating a discrimination claim under 42 U.S.C. § 1983,

this Court explained that “*[d]iscriminatory purpose’ . . . im-

plies more than intent as volition or intent as awareness of

consequences. . . . It implies that the decisionmaker . . . se-

lected or reaffirmed a particular course of action at least in

part “because of,” not merely ‘in spite of, its adverse effects

upon an identifiable group.” /d.

SHRM argues that the courts that have adopted a “cat's

paw” style of causation analysis detoured from Title VII ju-

risprudence because they allow a plaintiff to establish dispa-

rate treatment without requiring the plaintiff to show that the

decisionmaker made his decision “because of,” with intent

regarding, or with motive regarding. the plaintiffs protected

status.

Instead, these courts allow the plaintiff to graft the dis-

criminatory motive of one person onto the adverse action of a

neutral other. This erroneous detour, starting with the Sev-

enth Circuit in Shager v. Upjohn Co., 913 F.2d 398 (7th Cir.

1990), has been followed to some extent by the Fifth Circuit

in Russell vy. McKinney Hosp. Venture, 235 F.3d 219 (Sth Cir.

2000), and the Tenth Circuit in the instant case. However.

the approach taken by these courts cannot be reconciled with

either Tithe VII's intent requirement or this Court’s recent

decision in Reeves.

10

A. Title VIL Disparate Treatment Claims Require

Intent Whereas A Plaintiff May Disregard Intent

In Disparate Impact Claims

In Shager, the Seventh Circuit stated that “[t]he common

law rule is that an employer is liable for intentional torts of

its employees committed in furtherance of their employ-

ment.” 913 F.3d at 404. SHRM disagrees with this broad

statement of law which forms the basis for the Seventh Cir-

cuit’s “cat’s paw” causation analysis. Although an employer

usually will be liable for an employee’s negligence tort com-

mitted within the scope of employment, an employee’s inten-

tional tort is not necessarily imputed to the employer be-

cause, by definition, the act may be outside the scope of em-

ployment. Congress expressly required an analysis focused

on intent for Title VII disparate treatment claims. The Sev-

enth Circuit’s opinion in Shager began the detour into causa-

tion analysis, and it erred in imposing a causation analysis in

disparate treatment claims.

Title VII's prohibition against disparate treatment is

based on a discriminatory motive or intent by the person or

individuals taking an adverse action. This is the essence of a

disparate treatment claim. £.g., Burlington Northern, 126 S.

Ct. 2405 at 2417 (“Congress amended Title VII in 1991 to

permit victims of intentional discrimination to recover com-

pensatory . . . and punitive damages”).

In contrast to disparate treatment claims, which are ar-

guably claims under a statutory intentional tort, disparate im-

pact claims arguably arise from a statute of strict liability

since the question of violation centers upon the result and

disregards intent. Thus, disparate impact claims recognize

that an employer may violate Title VII even without intend-

ing to discriminate. Griggs v. Duke Power Co., 401 U.S. 424

(1971). Causation does not appear to be an element of inten-

tional torts, although it is relevant in negligence, and in fact

would short circuit the plaintiff's burden to prove intent.

ll

In the instant case, the Tenth Circuit adopted the Seventh

Circuit’s causation approach and held that BCI Coca-Cola

could be liable—despite Ms. Edgar’s lack of discriminatory

intent—if Mr. Grado’s alleged bias caused Mr. Peters’ termi-

nation. To subject BCI Coca-Cola to liability under Title VII

when all parties concede that the decisionmaker lacked intent

to discriminate would be to treat all disparate treatment

claims as disparate impact claims; that is, essentially as

claims of strict liability. However, as discussed above, Title

VII does not permit a court to ignore the decisionmaker’s in-

tent in disparate treatment cases.

B. Title VII Defines An Employer To Include An

Agent Of The Employer. The “Agent” In Sub-

ordinate Supervisor Cases Is The Formal Deci-

sionmaker, Not The Subordinate Supervisor

Title Vil defines an “employer” as a person engaged in

an industry affecting commerce and any agent of that person.

42 U.S.C. § 2000e(b). An agency relationship exists when a

principal assents to another acting on the principal's behalf.

Restatement (Third) of Agency § 1.01 (2006). An agent acts

with actual authority when the agent “reasonably believes, in

accordance with the principal's manifestations to the agent,

that the principal wishes the agent so to act.” /d. at § 2.01.

In addition to action, agency is defined by authority to act.

Id. at §§ 2.01, 3.05.. Any person may ordinarily be empow-

ered to act as an agent so as to affect the legal relations of

another. /d. at § 3.05.

In the case at hand, Mr. Grado was not the agent of BCI

Coca-Cola for purposes of Title VII because he did not take

the adverse action against Mr. Peters. Also, BCI Coca-Cola

did not give Mr. Grado authority to discipline or terminate

his subordinates. It therefore did not assent to have Mr.

Grado act on its behalf. The one who took the adverse action

was Mr. Edgars, the human resource professional. She was

the agent of BCI Coca-Cola since she had actual authority to

terminate emplovees on behalf of BCI Coca-Cola.

12

In the leading subordinate bias, or “cat's paw,” cases, in-

cluding the instant case, it is not in dispute that the allegedly

biased supervisor did not have authority to take adverse em-

ployment on behalf of the employer. BC/ Coca-Cola, 450

F.3d at 479; Hill v. Lockheed Martin Logistics Mgmt., Inc.,

354 F.3d 277, 282 (4th Cir. 2004); McKinney, 235 F.3d at

224; Shager, 913 F.2d at 405. Thus, the Seventh Circuit and

others err when they look to Title VII's language defining an

employer as “any agent” of the employer and conclude that

the Subordinate supervisor could be that agent despite his un-

disputed lack of authority to discipline or terminate.

C. Plaintiffs Must Show Discriminatory Motive By

The Person Committing The Adverse Action. A

Plaintiff May Not Make A Disparate Treatment

Case By Grafting One Person’s Discriminatory

Motive To Another Person’s Adverse Action

Since a plaintiff is required to show that the actual deci-

sionmaker had motive to discriminate, the “cat's paw” cases

would be easy to dispense with simply by showing that the

formal decisionmaker was aeutral. In all of these cases, the

parties do not dispute the formal decisionmaker’s lack of

bias. These cases are not easy to resolve, however, because

the formal decisionmaker’s level of interdependence with

other persons in arriving at a decision varies from case to

case.

A disciplined application of recognized disparate treat-

ment law would not permit a plaintiff to prevail by showing

that bias resided in one person, and an adverse action was

taken by another person, and thus, combined, they violated

Title VII.

13

D. Because A Plaintiff Must Show That A Person

Or Persons Took An Adverse Action With Dis-

criminatory Motive, The Court’s Inquiry Should

Center Upon The Independence Of The Formal

Decisionmaker, And Not Upon Whether An Al-

legedly Biased Person Caused Another To Take

An Adverse Action °

The legal standard used must look to the intent of the de-

cisionmaker. The Tenth Circuit’s standard, however, focuses

on the person with bias. The legal standard and the person a

test focuses upon must match. In other words, the test must

arise from the standard. The proper test is one that focuses

on the intent of the decisionmaker, not on the bias of the sub-

ordinate,

In Shager and McKinney, the courts’ inquiries focused

upon the supervisor and whether his report of an employee's

conduct caused or influenced the nevtral decisionmaker’s

decision. Shager. 913 F.3d at 405; McKinney, 235 F.3d at

226. Their inquiry incorrectly focuses upon the impact cre-

ated by the biased supervisor. |

Since Title VII only prohibits conduct by the employer

and its agent, the neutral decisionmaker, the inquiry should

focus upon the neutral decisionmaker. A test better rooted in

Title VII's requirement of discriminatory intent would evalu-

ate who is or are the decision makers, and whether the deci-

sionmaker arrived at her decision independently of the biased

supervisor.

If the decisionmaker’s decision was not independent, but

rather was so dependent upon the supervisor, that the super-

visor and the formal decisionmaker acted interdependently,

then the court may conclude that the supervisor is one of a

collaborative of decisionmakers.

First. the causation analysis adopted by the Seventh and

Tenth Circuits assumes as a premise that a court is permitted

in the first instance to graft one person's bias onto an admit-

14

tedly non-biased person. This premise has no roots in Title

VII jurisprudence. Title VII prohibits an adverse action be-

cause of an individual’s protected status. 42 U.S.C. §

2000e-2. This Court has construed the words “because of” to

mean that protected status must be irrelevant to the employ-

ment decision. Price Waterhouse, 490 U.S. at 240. In Price

Waterhouse, the Court held that to construe “because of” to

mean “but-for causation” “is to misunderstand” the statutory

language. /d A but-for causation analysis, the Court held,

incorrectly asks whether an employer would have terminated

if the protected status was not present. /d. According to the

Court, the critical inquiry is “the one commanded by the

~words of” Title VII--whether protected status “was a factor

in the employment decision at the moment it was made.” Id.

at 241.

Cautioning that we “need not leave our common sense at

the doorstep when we interpret a statute,” the Court reasoned

that in drafting the words “because of,” Congress did not re-

quire a plaintiff to identify a precise causal role played by

discriminatory motives. /d at 24T. Rather, the court con-

cluded that Congress intended to require a plaintiff to prove

that the employer “relied upon sex-based considerations in

coming to its decision.” /d. at 241-42. Congress did not in-

tend to allow a plaintiff to take a short cut in his burden by

attributing a supervisor s bias to an employer merely because

the supervisor was a but-for cause of a particular result. In-

stead, Congress intended a more rigorous burden to show

improper considerations were a factor in the decision.

Second, the use of causation analysis is overbroad as an

analytical tool since a termination decision almost always is

prompted by a supervisory report to a neutral decisionmaker.

The supervisor sets in motion a series of events that directly

or indirectly lead to termination and thus. to a greater or

lesser extent always has some causative effect upon the ter-

mination. This approach does not inform the court as to

whether the emplover disparately treated an employee.

i)

A more precise analytical test would be one rooted in Ti-

tle VII's requirement that a plaintiff must show that a deci-

sionmaker took adverse action with discriminatory motive.

The question that arises when a neutral decisionmaker

decides to terminate an employee on the basis of a supervi-

sor’s report is not whether the supervisor caused the decision,

but rather whether the supervisor’s role in the termination

rises to such a level of involvement that the supervisor was

one of the collective decisionmakers. This is a clear holding

of Reeves, and it seems to be implicit in the Fifth Circuit’s

holding in McKinney.

As part of the McDonnell Douglas burden-shifting para-

digm, an employer may present evidence that the decision-

maker was not biased. Reeves, 530 U.S. at 142. This point

rests on a debatable presumption that the formal decision-

maker is the only decisionmaker. The plaintiff may attempt

to show that the employer's proffered reasons are merely pre-

textual by showing that the formal decisionmaker did not act

alone. The plaintiff may establish that the supervisor was so

involved in the process leading to the decision that the super-

visors biased conduct, together with the formal decision-

maker's adverse action, were interdependent and that the su-

pervisor and the formal decisionmaker collectively termi-

nated the employee. This manner of framing the issue fo-

cuses the analysis upon the level of interdependence between

the biased supervisor and the formal decision maker rather

than upon causation.

If the facts present at the summary judgment stage are

such that there can be no genuine dispute that the formal de-

cisionmaker acted independently of the supervisor's report,

then the court should decide, as a matter of law, that the bias

of the supervisor may not be attributed to the employer.

There are a number of types of factual situations in any

case that, if not in genuine dispute. should permit a court to

determine as a matter of law that the decisionmaker acted

16

independent of the supervisor’s report. We examine those

types of factual situations in Section II below.

E. If We Look te Whether The Formal Decision-

maker Took Adverse Action Independently Of

The Person Who Harbored Discriminatory Mo-

tive, The Various Circuits’ Results Would Ap-

pear Logical And Consistent

A comparison of the very different factual circumstances

in Shager, McKinney, Reeves, and Lockheed Martin illumi-

nates the circuit courts’ different approaches te subordinate

supervisor bias.

The courts have refused to dismiss a plaintiffs discrimi-

nation claim when a supervisor engaged in an ongoing dia-

logue with a formal decisionmaker in an effort to recommend

and, in some cases, to strongly advocate or pressure, the for-

mal decisionmaker to terminate the employee. Reeves, 530

U.S. at 138; McKinney, 235 F.3d at 224; Shager, 913 F.2d at

400. In contrast, in cases in which a supervisor merely re-

ported an incident or sought guidance from the human re-

source department, the courts have granted summary judg-

ment to the employer. Lockheed Martin, 354 F.3d at 282.

We note that in the instant case, Mr. Grado did not recom-

mend termination, but merely sought guidance from and re-

ported facts to Ms. Edgars. BC] Coca-Cola, 450 F.3d at 479.

In cases where the decision to terminate was based upon

objective grounds such as safety, absence, insubordination, or

where the employee had not contested the basis for termina-

tion, the courts have granted summary judgment to the em-

ployer. In Lockheed Martin, tor example. the termination

grounds of safety violations and tool management were ob-

jective and Ms. Hill did not dispute them. 354 F.3d at 282-

83. -

In contrast. when the purported ground for termination

was subjective, such as a performance evaluation. or where

the plaintifl disputed the termination basis, the courts have

17

denied judgment as a matter of law for the employer.

Shager, 913 F.2d at 406; McKinney, 235 F.3d at 230. In this

case, Mr. Peters did not dispute that he refused to work on

Sunday or that he said, “do what you got to do.”

When an employer conducted any degree of inquiry, the

courts have tended to dismiss the case at summary judgment.

In Lockheed Martin, the employer reviewed the disciplinary

reports and the personnel file. 354 F.3d at 282. By contrast,

where the supervisor so strongly advocated for termination

that the decisionmaker accepted the supervisor’s judgment

without inquiry, the courts have allowed the plaintiff to pro-

ceed to trial. In McKinney, the supervisor, who was related

to the owner, threatened to quit if the plaintiff was not termi-

nated. 235 F.3d at 224. In Reeves, this Court found that the

supervisor, Mr. Chesnut, wielded absolute authority and

strongly lobbied for the plaintiff's termination to the owner,

his wife. 530 U.S. at 152. In the instant case, there was no

dispute that Ms. Edgar did conduct some inquiry. BC] Coca-

Cola, 450 F.3d at 492.

Thus, the elements of a standard announce themselves by

an examination of the facts at summary judgment in the cases

at issue. Such a standard must be consistent with the Title

VII jurisprudence described above, which requires the person

who takes an adverse action must be the one who harbors the

discriminatory motive.

Il. DIFFERENT FACTUAL SITUATIONS REQUIRE

A MORE FLEXIBLE APPROACH TO DETER-

MINING THE INDEPENDENCE OF THE FOR-

MAL DECISIONMAKER

There are three common factual scenarios that drive liti-

gation under the discrimination laws. In the first class of

cases, the formal decisionmaker harbors the animus, and the

plaintiff alleges that his decision was motivated by that ani-

mus. See, e.g... McDonnell Douglas, 411 U.S. 792 (1973). In

these cases, the formal decisionmaker’s animus ts rightly im-

18

puted to the employer because the formal decisionmaker is

the employer's agent.

In the second class of cases, the biased individual has no

supervisory or disciplinary authority over the employee

against whom adverse action is taken. Expressions of ani-

mus by these individuals are mere “stray remarks,” and they

may not be imputed to the employer. In Price Waterhouse,

490 U.S. at 277, this Court stated that stray remarks, “cannot

justify requiring the employer to prove that its hiring or pro-

motion decisions were based on legitimate criteria. Nor can

Statements by nondecisionmakers, or statements by deci-

sionmakers unrelated to the decisional process itself, suffice

to satisfy the plaintiffs burden in this regard.”

Although the Fourth Circuit did not characterize it as

such, the facts of Lockheed Martin fall within the “stray re-

marks” doctrine. In that case it was undisputed that the al-

legedly biased safety inspector who reported Ms. Hill’s vio-

lations of company policy had no supervisory or disciplinary

authority over Ms. Hill. Lockheed Martin, 354 F.3d at 282.

Rather, the safety inspector merely reported violations to Ms.

Hill's supervisor, who possessed disciplinary—but not ter-

mination— authority. /d. It was also undisputed that none of

Hill's four direct supervisors harbored any age-based animus.

Id. at 282-83. Using similar reasoning to the “stray remarks”

doctrine of Price Waterhouse, the Fourth Circuit rightly con-

cluded that the safety inspector's bias could not be attributed

to the employer. /d. at 296.

In the third class of cases, where we presently finds our-

selves, a biased supervisor without termination authority, re-

ports to someone up the chain of command who possesses

termination authority. The Seventh and Tenth Circuits have

adopted a causation analysis to determine whether the super-

visor’s bias may be imputed to the employer, but, as dis-

cussed above, this analysis is misplaced.

19

[he approach more faithful to Title VII is to follow the

Court's analysis in Reeves and look to the independence of

the formal decisionmaker’s action. In Reeves, Ms. Sanderson

was the formal decisionmaker who fired Mr. Reeves, but evi-

dence presented by Mr. Reeves showed Mr. Chesnut also to

be a decisionmaker. Reeves, 530 U.S. at 152. The Court im-

plicitly determined that Ms. Sanderson did not act independ-

ently but rather acted interdependently with Mr. Chesnut. /d.

Once the Court was satisfied that Mr. Chesnut was a deci-

sionmaker, it followed that his animus could be imputed to

the employer.

The approach SHRM advocates here does not require a

determination of who the principal decisionmaker is, for

there may be several decisionmakers who all played an equal

role throughout the chain of command. SHRM proposes that

the court identify the individual or the group of individuals

who acted as the decisionmakers. Because the formal deci-

sionmaker will always be included in this class. the most

practical approach is to look to facts not in dispute to show

that the formal decisionmaker made an independent decision.

If the formal decisionmaker acted independently, then only

her animus may be attributed to the employer. However, if

the formal decisionmaker did not make an independent deci-

sion, at least one other employee is necessarily part of an in-

terdependent decision, and that person’s animus may be im-

puted to the employer.

lo determine independence at the summary judgment

stage. courts may look to several undisputed facts in the re-

cord. For example, the fact that the formal decisionmaker

conducted an inquiry as defined below would always be sul-

ficient to show the independence of the formal decision-

maker. [lowever, an inquiry is not always necessary. Fac-

tual situations vary widely and the law should permit human

resource managers the flexibility to deal with cases in the

most efficient and appropriate method. In these cases. courts

should defer to the business judgment and experience of hu-

man resource professionals.

A. The Formal Decistonmaker May Demonstrate Its

Independence By Conducting An Inquiry

The effect of the Tenth Circuit’s holding in BC] Coca-

Cola is that a defendant cannot prevail on summary judgment

unless it conducted an investigation that was “adequate” as a

matter of law. In the court’s view, an adequate investigation

must consist, at a minimum, of asking the employee for his

side of the story. BC] Coca-Cola, 450 F.3d at 488, 492. Be-

cause Ms. Edgar did not directly ask Mr. Peters his side of

the story prior to his termination (although she did indirectly

through Mr. Grado, id. at 492), the Tenth Circuit held that

BCI Coca-Cola did not conduct an adequate investigation

and the court reversed the district court’s grant of summary

judgment. The Tenth Circuit's holding is wrong for two rea-

sons.

First, the Tenth Circuit's “adequate investigation” stan-

dard is overbroad. It erroneously imposes a strict legal stan-

dard for a fact question best left to the discretion of human

resource professionals. If the Tenth Circuit’s holding is left

undisturbed, human resource professionals will not have the

flexibility to apply their business judgment and experience to

unique factual situations. In addition, permitting a determi-

nation of an investigation’s “adequacy” amounts to judicial

second guessing. Moreover, although an inquiry is sufficient

to establish a formal decisionmaker’s independence, in some

circumstances, no inquiry is needed.

A human resource professional's decision whether to per-

form an inquiry is precisely the discretion protected by the

super-personnel doctrine. In Pippin v. Burlington Resources

Oil and Gas Co., the Tenth Circuit held that it “will not sec-

ond guess business decisions made by employers. in the ab-

sence of some evidence of impermissible motives.” 440 F.3d

1186, 1197 (10th Cir. 1988) (quoting Branson v. Price River

21

Coal Co., 853 F.2d 768, 772 (10th Cir. 1988)). Similarly, in

Bender v. Hecht’s Department Stores, the Sixth Circuit held

that it was improper for a court to act “as a super personnel

department, overseeing and second guessing employers’

business decisions.” 455 F.3d 612, 627-28 (6th Cir. 2006)

(internal quotations omitted). The Eighth Circuit opined in

Stallings v. Hussman Corp. that “we are mindful that we do

not sit as super-personnel departments reviewing the wisdom

or fairness of the business judgments made by employers,

except to the extent that those judgments involve intentional

discrimination.” 447 F.3d 1041, 1052 (8th Cir. 2006). Simi-

larly, in Millbrook v. IBP, Inc., the Seventh Circuit explained

that “a court’s role is to prevent unlawful hiring practices, not

to act as a super personnel department that second-guesses

employers’ business judgments.” 280 F.3d 1169, 1181 (7th

Cir. 2002) (internal quotations omitted).

The super-personnel doctrine derives from the well-

established business judgment rule, which this Court has rec-

ognized. E£.g., Kamen v. Kemper Fin. Servs., Inc., 500 U.S.

90, 101 (1991); NLRB v. Bildisco and Bildisco, 465 U.S. 513,

520 (1984): Burks v. Lasker, 441 U.S. 471. 474 (1979). The

requirement of performing an adequate investigation imposes

an inefficient and undue burden on employers, and it unnec-

essarily forces a process upon them in instances when they,

as experts, may determine that a different solution is prefer-

able.

The Tenth Circuit conceptualized a flawed definition of

“investigation.” A more precise test would allow a formal

decisionmaker to conduct an inquiry, which is the minimum

necessary for establishing that she arrived at her decision in-

dependently. SHRM proposes that this “inquiry” be defined

as any active search for and discovery of evidence probative

of the reliability of the supervisor’s report or stated grounds

for an adverse employment action.

If the formal decisionmaker makes such an inquiry, then

she has established that she independently made her decision,

22

and the supervisor’s animus is not imputed to the employer.

This standard is consistent with the super personnel doc-

trine’s deference to business judgment because it preserves

an employer’s discretion in tailoring its inquiry according to

the unique facts presented. |

BCI conducted such an inquiry. After Mr. Grado con-

ferred with Ms. Edgar of the Human Resource Department

concerning Peters’ plans to call in sick, Ms. Edgar and Ms.

Pederson did several things that rise to the level of an in-

quiry. First, Ms. Edgar advised Mr. Grado to “find out what

the situation was and, unless Mr. Peters had a compelling

reason why he could not come to work, to order Mr. Peters to

work on Sunday.” BCI Coca-Cola, 450 F.3d at 492 (internal

quotations omitted). Mr. Grado followed Ms. Edgar’s advice

and reported back to Ms. Edgar “exactly what had happened”

when Mr. Grado spoke to Mr. Peters. /d. at 479-80. Indeed,

it was Ms. Edgar who decided that Mr. Peters’ behavior

amounted to insubordination. /d. at 480.

The following Monday morning Ms. Edgar held several

telephone conferences with both Mr. Grado and Ms. Peder-

son to discuss Mr. Peters’ conduct. Next, at Ms. Edgar’s di-

rection, Ms. Pederson pulled Mr. Peters’ file and found evi-

dence of a 1999 incident in which Mr. Peters received a sus-

pension and a “final warning” for insubordination from a dif-

ferent supervisor. /d In the 1999 incident, Mr. Peters was

ordered to work on Sunday; he refused and, according to the

file, “was rude and unprofessional in his conduct.” /d. (in-

ternal quotations omitted). Only after obtaining Mr. Peters’

side of the story and finding evidence of the 1999 incident

for which Mr. Peters was issued a final warning did Ms. Ed-

gar decide to terminate Mr. Peters for insubordination. /d.

These facts demonstrate that Ms. Edgar conducted an “in-

quiry”’—she actively searched for and found evidence proba-

tive of the reliability of Mr. Grado’s updates on his dealings

with Mr. Peters.

23

In taking these steps, BCI Coca-Cola did what SHRM be-

lieves many non-discriminatory employers would have done

in the absence of reasons know that Mr. Grado may have

harbored a bias. While SHRM concedes that in some cir-

cumstances further inquiry may be preferable, there is no

foundation in Title VII jurisprudence to mandate a specific

process. To specifically require an “adequate investigation,”

including asking the employee his side of the story, would be

to impose an unprecedented procedural requirement on pri-

vate employers. An employee's right to be asked his version

of events and the right to the benefits of an “adequate inves-

tigation” are rights enjoyed by public employees who are en-

titled to notice and a hearing prior to adverse action. In the

private sector, unionized employees enjoy similar rights, but

these are rights that an employee must specifically bargain

for. The Tenth Circuit’s holding implicitly establishes the

right to be heard for all private employees. Such rights are

unfounded in Title VII.

It should be noted that the Tenth Circuit misapplied its

own “adequate investigation” standard. The Tenth Circuit

recognized that Ms. Edgar instructed Mr. Grado to “find out

what the situation was” and to talk to Mr. Peters and deter-

mine why he wouldn't be able to work on Sunday. /d. at

479. Ms. Edgar, through Mr. Grado, did ask Mr. Peters to

explain his position, and the Tenth Circuit’s conclusion that

she “failed to take even the basic step. . . of asking Mr. Pe-

ters for his side of the story” is factually incorrect. /d. at 491.

B. The Tenth Circuit Overlooks Numerous Other

Ways In Which Independence May Be Demon-

strated

The collective experience of the human resources com-

munity teaches that an inquiry. while always sufficient to

show independence, is not always necessary. Rather, human

resource professionals need the flexibility and latitude to han-

dle employment decisions in the most efficient and responsi-

ble manner under the circumstances. Often times, an inquiry

24

will not be the best way to establish the formal decision-

maker’s independence.

Il. Termination By The Formal Decisionmaker

Pursuant to a Policy of Automatic Termina-

tion (e.g., a Zero-Tolerance Policy)

Some facts leading to an adverse employment decision

are so apparent that no inquiry is required by the formal deci-

sionmaker before taking the contemplated action. For exam-

ple, a company may have a zero-tolerance drug policy in

place and requires routine testing pursuant to a written pol-

icy. If the supervisor receives the lab results showing that the

employee tested positive and forwards the results to the for-

mal decisionmaker who promptly terminates the employee,

no claim should lie against the employer even if the supervi-

sor harbored race-based animus. The employer's decision

was based entirely on the facts of the zero-tolerance drug pol-

icy and the positive test results. Under these circumstances,

the supervisor's forwarding of the test results could hardly be

said to compromise the independence of the formal deci-

sionmaker’s action.

In addition to policies of automatic termination,

SHRM’s experience is that, in the field of occupational safety

and health. a formal decisionmaker may decide immediately

to terminate an employee for a safety infraction. In such

cases, the formal decisionmaker should be given the latitude

to do so without inquiry—even if the decision is based en-

tirely on a supervisor's report —if in doing so the formal de-

cisionmaker acted in good faith furtherance of the safe and

healthful conditions of the workplace.

Yet, the Tenth Circuit would require the employer to ask

the employee his or her side of the story before taking any

adverse action lest the employee later brings forth evidence

that the supervisor was biased. Under the Tenth and Seventh

Circuits’ framework, the supervisor's animus would be im-

puted to the employer because (1) the supervisor's forward-

25

ing of a report was a cause of the termination, and (2) the

employer did not conduct an “adequate investigation” that

included asking the employee his or her side of the story.

BCI Coca-Cola, 450 F.3d at 492. SHRM believes that in

these situations, an inquiry is wholly unnecessary to the par-

ticular decision facing the employer and to conduct one

would be a gross waste of corporate resources.

Lockheed Martin and BCI Coca-Cola are examples of

this situation. In Lockheed Martin, Ms. Hill did not dispute

the basis for any of the three reprimands issued to her by the

“lead person” (Ms. Hill's direct supervisor). Lockheed Mar-

tin, 354 F.3d at 283. Of the three reprimands, one included a

suspension. /d. at 282. Company policy provided that “an

employee who receives a combination of two reprimands not

involving a suspension and one involving a suspension . . .

will be subject to discharge.” /d. Upon issuing Ms. Hill her

third reprimand, Mr. Dixon, the lead person, contacted the

human resources department and inquired how to proceed

under the automatic termination policy. /d. Mr. Dixon was

told to follow company policy, which he did by forwarding

Ms. Hill’s disciplinary paperwork to his own supervisors

who made the decision to terminate Ms. Hill. /d Under

these facts, in which the formal decisionmakers were acting

pursuant to a policy of automatic termination, a thorough in-

vestigation was not necessary. However, Mr. Dixon’s super-

visors—the formal decisionmakers did conduct an inquiry

inasmuch as they reviewed Ms. Hill’s file. This satisfied the

court that they arrived at their decision independently.

Similarly, in the instant case, Mr. Peters was fired pursu-

ant to a stated policy of automatic termination. Ms. Edgar

instructed Mr. Grado to inform Mr. Peters that absent a com-

pelling reason why he could not work on Sunday, Mr. Peters’

refusal to work would be insubordination, which could result

in termination. BCT Coca-Cola, 450 F.3d at 479. When Mr.

Grado relayed to Ms. Edgar the contents of his Friday con-

versation with Mr. Peters, Ms. Edgar “determined at that time

26

that Mr. Peters’ conduct in that conversation, standing alone,

amounted to insubordination warranting termination.” /d. at

480. Later, Ms. Pederson discovered that Mr. Peters’ file

contained a 1999 suspension and “final warning” for insub-

ordination under strikingly similar circumstances. Jd A “fi-

nal warning” is tantamount to a policy of automatic termina-

tion. In light of the facts of Mr. Peters’ insubordination on

the phone call with Mr. Grado and the 1999 final warning for

insubordination, Ms. Edgar independently decided to file Mr.

Peters. /d.

SHRM notes that the steps Ms. Edgar took reflect the re-

alities of the workplace. In the absence of any reason to sus-

pect Mr. Grado of bias, Ms. Edgar asked Mr. Grado addi-

tional questions, directed him to gather additional informa-

tion, reviewed Mr. Peters’ file, and made a decision to termi-

nate Mr. Peters. Human resource professionals at larger em-

ployers cannot conduct full investigations for each termina-

tion.

2. The Supervisor Does Not Advocate For a Par-

ticular Decision But Merely Reports Facts To

or Seeks Advice From the Formal Decision-

maker

The Court should look to the strength of the subordinate

supervisor's advocacy as an indicator of whether the supervi-

sor’s behavior tends to make him or her one of several inter-

dependent decisionmakers. In cases in which the supervisor

in effect becomes an advocate for a particular decision and

seeks to influence the formal decisionmaker, the court may

need to look further for facts relating to the formal decision-

maker’s independence. However, where a supervisor merely

reports facts or seeks advice trom the formal dectsionmaker,

an inquiry is unnecessary. The supervisor's only role in this

scenario is to convey or receive information, not to influence

the formal decisionmaker. Thus, there is no threat to the in-

dependence of the formal! decisionmaker’s actions.

In the leading cases in which the employee subordinate to

the formal decisionmaker strongly advocated for the adverse

employment decision, the reviewing court denied summary

judgment for the employer. In Reeves, “Chesnut, along with

Dana Jester, vice president of human resources, and Tom

Whitaker, vice president of operations, recommended to

company president Sanderson that petitioner and Caldwell be

fired.” 530 U.S. at 138. In McKinney, Mr. Ciulla, the subor-

dinate employee, gave Ms. Jacobsen, the formal decision-

maker, “an ultimatum . . . that he would quit if Russell were

not fired.” 235 F.3d at 224. In Shager, “Lehnst recom-

mended to Asgrow’s *Carecr Path Committee, which re-

views personnel action, that Shager be fired; and in July

1986, he was.” 913 F.2d at 400.

In the lone case in which the subordinate employee did

not advocate for a particular result but merely presented facts

to the human resource department, the Fourth Circuit af-

firmed summary judgment for the employer. Lockheed Mar-

tin, 354 F.3d at 297. In Lockheed Martin, after Ms. Hill re-

ceived her third reprimand which, under company policy,

required automatic termination, her supervisor, Mr. Dixon.

contacted his own supervisor, Mr. Griffin, to apprise him of

the situation and “to obtain guidance on how to proceed.”

Lockheed Martin, 354 F.3d at 282. Mr. Griffin instructed

Mr. Dixon to proceed under company policy, which required

forwarding Ms. Hill’s disciplinary paperwork to Mr. Griffin

who, along with Mr. Prickett, made the decision to terminate

Ms. Hill. /d At no time did Mr. Dixon suggest or recom-

mend to his superiors that Ms. Hill be terminated; rather. as

the opinion makes clear, his contact with Mr. Griffin was

limited to obtaining guidance on how to deal with a delicate

employment matter.

In the instant case. Mr. Grado never advocated or

suggested to Ms. Edgar or Ms. Pederson that Mr. Peters be

terminated. In fact. the Tenth Circuit recognized that after

Mr. Grado grew frustrated by Mr. Peters’ refusal to work on

28

Sunday, Mr. Grado “decided to seek advice from the Human ,

Resources Department.” BC Coca-Cola, 450 F.3d at 479

(emphasis added). Throughout his several conversations

with Ms. Edgar, Mr. Grado merely recounted his dealings

with Mr. Peters as he carried out Ms. Edgar’s instructions,

and he continually asked for advice on how to proceed in the

matter. /d. at 479-80. At every step in the process that led to

Mr. Peters’ termination, Ms. Edgar was the sole decision-

maker. She instructed Mr. Grado to inform Mr. Peters that

his failure to work on Sunday without a compelling excuse

was ground for termination; she concluded that Mr. Peters’

remark to Mr. Grado during their Friday telephone call (“Do

what you got to do and I'll do what | got to do”) was insub-

ordinate; and she decided that Mr. Peters should be termi-

nated. /d at 479-81. Mr. Grado’s role in the process was

merely ministerial, and it cannot be said to have compro-

mised Ms. Edgar’s independent decision to terminate Mr.

Peters. Whe Tenth Circuit is therefore incorrect that “[Ms.

Edgar’s] investigation consisted of exactly one action: di-

recting Ms. Pederson to pull Mr. Peters’ personnel file.” /d.

at 492.

SHRM’s approach yields results similar to those reached

by the circuit courts, but it does so in a way that is faithful

both to Title VII's intent requirement and the Court’s holding

in Reeves. The factors SHRM highlights as important for

consideration in subordinate liability cases are the same fac-

tors that implicitly led the circuit courts to their decisions.

An analysis of independent decisionmaking will answer the

ultimate question of whether a subordinate supervisor's bias

is attributable to the employer.

29

CONCLUSION

The decision of the Court of Appeals for the Tenth Cir-

cuit should be reversed, and the district court’s grant of

summary judgment for BCI Coca-Cola should be reinstated.

Respectfully submitted.

MICHAEL P. AITKEN

KENYA N. WILEY

SOCIETY FOR HUMAN

RESOURCE MANAGEMENT

1800 DUKE STREET

ALEXANDRIA, VIRGINIA

22314

(703) 535-5026

FEBRUARY 20. 2007

MANESH K. RATHI

Counsel of Record

ROBERT A. SHEFFIELD

PETER DF LA CRUZ

MELISSA A. D’ AMBROSE

KELLER AND HECKMAN LLP

1001 G STREET, N.W..,

SuITE 500 WesT

WASHINGTON, D.C. 20001

(202) 434-4182

COUNSEL FOR AMICUS CURIAE

SOCIETY FOR HUMAN RE-

SOURCE MANAGEMENT